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Probating the Estate of a Missing Person

In order to probate the estate of a decedent, you need to provide the probate court with evidence that the person is dead. In most cases you do this by providing the court with a copy of the death certificate. However, sometimes people disappear and cannot be traced. The National Crime Information Centre (NCIC) reports that it had 87,217 active missing person records at the end of 2012.

So what can you do if you believe a missing relative has passed away, but do not have a death certificate?

Presumption of death

Under Florida law, you can petition the court for a determination that a missing person is presumed dead if:

  • The person has been absent from his or her last known domicile for a continuous period of five years; and
  • After diligent search and inquiry there is no satisfactory explanation for the absence

If there is no evidence to the contrary, death is presumed to have taken place at the end of the five-year period of absence. However, you may not be required to wait five years if you have evidence that the missing person's life was imperiled (e.g. because of a natural disaster or terrorist attack) or where there is circumstantial or direct evidence of the person’s death.

A copy of a record or report from a government agency, domestic or foreign, that the missing person is presumed dead is generally sufficient (but not necessarily conclusive) evidence of death. Another Florida statute provides that a written finding of presumed death from the Secretary of the Navy or Army, or someone else authorized by statute to make such a finding, may also be accepted as evidence of death.

A determination that a person is presumed dead allows their estate to be probated. For assistance with obtaining such a determination, consult an experienced Orlando probate attorney.

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